Michael Hicks v. DENNIS M. STRAUB, Warden

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0248P (6th Cir.)
File Name: 04a0248p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
MICHAEL HICKS,
Petitioner-Appellee,
v.
DENNIS M. STRAUB, Warden,
Respondent-Appellant.
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No. 03-1124
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 01-70951—Arthur J. Tarnow, District Judge.
Argued: March 18, 2004
Decided and Filed: July 29, 2004
Before: KENNEDY, ROGERS, and COOK, Circuit
Judges.
_________________
COUNSEL
ARGUED: Brad H. Beaver, OFFICE OF THE ATTORNEY
GENERAL, Lansing, Michigan, for Appellant. Carole M.
Stanyar, Detroit, Michigan, for Appellee. ON BRIEF: Brad
H. Beaver, OFFICE OF THE ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. Carole M. Stanyar,
Detroit, Michigan, for Appellee.
2 Hicks v. Straub No. 03-1124
1The court granted the petition unless the State of Michigan
scheduled a new trial for petitioner within ninety days.
KENNEDY, J., delivered the opinion of the court, in which
COOK, J., joined. ROGERS, J. (p. 35), delivered a separate
concurring opinion.
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OPINION
_________________
KENNEDY, Circuit Judge. The district court conditionally
granted the petition for a writ of habeas corpus under 28
U.S.C. § 2254 of Petitioner Michael Hicks, a Michigan
prisoner, on his claim that his Sixth Amendment right to
confrontation was violated at his first-degree murder trial
when the prosecutor, during his opening statement, advised
the jury that petitioner had confessed to the murder to a fellow
jail inmate and, yet, subsequently failed, despite a good faith
effort, to produce that inmate as a witness.1 The district court
found that the procedural default doctrine did not bar the
review of petitioner’s Confrontation Clause claim.
Specifically, the court held that (1) petitioner had “fairly
presented” his Confrontation Clause claim to the state courts
on direct review; (2) to the extent that the state courts on
direct review would have found that petitioner procedurally
defaulted his Confrontation Clause claim as a result of trial
counsel’s failure to object to the underlying violation at trial,
the ineffective assistance of trial counsel would have excused
any such default; and, (3) petitioner had not procedurally
defaulted his Confrontation Clause claim before the state
courts on collateral review because the state procedural
ground upon which the state courts denied petitioner leave to
appeal was inadequate to bar federal habeas review.
In reaching the merits of petitioner’s Confrontation Clause
Claim, the district court found that the prosecutor’s opening

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No. 03-1124 Hicks v. Straub 3
statement comment concerning petitioner’s alleged confession
violated petitioner’s right to confrontation, and that this
violation was not harmless error. The district court further
found, pursuant to § 2254(d), that the prior state-court denial
of petitioner’s Confrontation Clause claim on the merits was
an unreasonable application of the pertinent, clearly-
established Supreme Court precedent.
Respondent Dennis Straub appeals this grant of the writ of
habeas corpus on the following grounds: (1) the district court
erred in reaching the merits of petitioner’s claim because
petitioner procedurally defaulted his claim by failing to raise
it on direct review and because trial counsel’s failure to object
did not constitute ineffective assistance of counsel that would
excuse this default; (2) the district court violated 28 U.S.C.
§ 2254(e)(2) when it held an evidentiary hearing on
petitioner’s claim of ineffective assistance of trial counsel
because petitioner had failed to develop the factual basis
underlying that claim in the state courts; and (3) assuming
that the district court had the authority to reach the merits of
petitioner’s Confrontation Clause claim, it erred in granting
relief because the prosecutor’s remark did not violate
petitioner’s right to confrontation under the relevant, clearly-
established Supreme Court precedent.
For the reasons explained below, we REVERSE the district
court’s grant of a writ of habeas corpus to petitioner under 28
U.S.C. § 2254.
I. Procedural History
Adjudication of respondent’s present appeal requires an
understanding of the complex procedural history that bears
upon that appeal in the state courts.
4 Hicks v. Straub No. 03-1124
A. Pre-Trial and Trial
On July 25, 1993, petitioner was arrested and charged with
the first-degree murder of Shawn Stalworth, who had been
shot to death earlier that day as he was leaving his house in
Battle Creek, Michigan. Following his arrest, petitioner was
confined in a local jail, where he allegedly confessed to
another inmate, Lorenzo Brand (“Brand”), that he had
committed the murder. Brand testified to this confession at
petitioner’s preliminary hearing. At petitioner’s jury trial, the
prosecutor, during his opening statement, stated, in pertinent
part:
Defendant was arrested. He was charged. He was
arraigned. He was taken to the City of Battle Creek
lockup, not the county jail, but the lockup pending
transfer, moving him over here. While he was there[,]
there was another person in the lockup. He goes, hey,
my mom just saw you on a videotape . . . . He said my
mom told me she just saw a person and they accused him
of homicide. You kill that man? What did he say? Yep,
yep.
At the close of the state’s case, the prosecutor informed the
court that the state would not call Brand as a witness because
it had been unable to locate him. The prosecutor admitted
that he did not believe that the state’s efforts to locate Brand
met with the due diligence required under Michigan case law
for the admission of preliminary examination testimony. The
trial court agreed and declined to admit the testimony.
Despite the prosecutor’s failure to produce Brand, defense
counsel neither objected to nor requested a mistrial based
upon the prosecutor’s opening statement relaying that
confession. Further, defense counsel never mentioned the
prosecutor’s statement regarding petitioner’s alleged
confession in his opening statement, which he had reserved
until the close of the prosecution’s case. Neither defense
counsel nor the prosecutor mentioned the alleged confession
in closing arguments.

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No. 03-1124 Hicks v. Straub 5
2The only plausible way for the jury to make the necessary
connection would have been to compare the list of witnesses mentioned
during the voir dire with the actual witnesses called. W hether the jury
made that connection is unknown.
The trial court gave the jury the customary instruction that
“[t]he lawyers’ statements and arguments are not evidence,”
and further instructed:
Lorenzo Brand is a missing witness whose appearance
was the responsibility of the [p]rosecution. You may
infer that the witness’ testimony would have not been
favorable to the [p]rosecution’s case.
However, because the prosecutor’s opening statement never
named the jail inmate to whom petitioner allegedly confessed,
and because no mention was ever made before the jury that
Brand was that inmate, the jury had no knowledge with which
to tie the trial court’s “Brand” instruction to the prosecutor’s
opening statement regarding the alleged confession.2
Moreover, immediately after this instruction, the district court
gave an instruction as to when the jury could properly
consider an unrelated out-of-court statement made by
petitioner that had been admitted into evidence.
The jury convicted petitioner of first-degree murder and
possession of a firearm during the commission of a felony.
The trial court sentenced petitioner to life imprisonment
without parole on the murder conviction and to two years’
imprisonment on the felony-firearm conviction.
B. Direct Review
Petitioner filed an appeal as of right in the Michigan Court
of Appeals. Petitioner presented, among others, the following
two claims:
I. Defendant . . . was denied a fair trial by the
prosecutor’s numerous instances of misconduct,
6 Hicks v. Straub No. 03-1124
3Petitioner also argued that trial counsel rendered ineffective
assistance when he failed to impeach a witness with testimony from his
preliminary examination; to make app ropriate motions, both before and
during trial; to cross-examine a witness concerning her in-court
identification of defendant with her prior stateme nt that she could not
identify the perpetrator; and to prepare petitioner’s alibi defense
adequately.
including arguing matters not in evidence, such as
defendant’s supposed admission to committing the
murder, and by repetitively cross-examining
defendant on the irrelevant matter of his being a
marijuana dealer.
II. Because of defense counsel’s failures[,] . . .
[defendant] was denied his rights to the effective
assistance of counsel, to present an effective defense,
and to a fair trial.
Petitioner only asserted that these instances of prosecutorial
misconduct violated defendant’s rights to due process and a
fair trial; he never argued that this misconduct also violated
his Sixth Amendment right to confrontation. During his
appeals in the state courts, petitioner argued that no curative
instruction could have remedied the prejudice to defendant.
During the direct appeal, no one mentioned that the curative
instruction that identified Brand was referring to the jail
inmate in the prosecutor’s opening statement to whom
petitioner allegedly confessed. Since trial counsel never
objected to this alleged prosecutorial misconduct, petitioner
argued that this failure to object resulted in the requisite
manifest injustice which rendered any such objection
unnecessary, and, alternatively, that the failure amounted to
an ineffective assistance of counsel. Thus, petitioner’s
independent claim of ineffective assistance of counsel rested,
in part, upon this failure by trial counsel.3
Petitioner filed a motion to remand the case to the trial
court for an evidentiary hearing on his claim of ineffective

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No. 03-1124 Hicks v. Straub 7
assistance of trial counsel. The Michigan Court of Appeals
affirmed petitioner’s conviction and sentence. People v.
Hicks, No. 171833 (Mich. Ct. App. Nov. 8, 1996). As to the
first claim, the court found that trial counsel, by failing to
object to the alleged instances of prosecutorial misconduct at
trial, had failed to preserve this claim for review absent a
miscarriage of justice. Id. Noting that only a miscarriage of
justice would excuse this failure, the court further found that
there was “no manifest injustice in the prosecutor’s comment
during his opening statement that defendant allegedly
confessed to the crime to a fellow inmate, even though the
prosecution later failed to produce that witness.” Id. The
court reasoned that the trial judge’s instruction to the jury that
it “could assume that the witness the prosecution was unable
to produce would have testified unfavorably to the
prosecution, and that . . . [it was] not to consider defendant’s
alleged out-of-court admission as evidence of his guilt”
remedied any potential prejudice that may have resulted from
this comment.
After noting that the defendant failed to properly preserve
the issue, the court of appeals nonetheless decided to address
the merits of his ineffective assistance of trial counsel claim,
and found that he “failed to overcome the presumption that he
was afforded effective assistance of counsel.” Id.
Specifically, the court held that “in each instance, the action
[that] defendant suggests that counsel should have taken[]
would have either been futile, or a matter of strategy that th[e]
[c]ourt is unwilling to second-guess on appeal.” The
Michigan Court of Appeals denied petitioner’s motion to
remand on the ground that petitioner “failed to identify an
issue sought to be reviewed on appeal and demonstrate by
affidavit or an offer of proof regarding the facts to be
established at a hearing,” as M.C.R. 7.211(c)(1)(a)(ii)
requires. People v. Hicks, No. 171833 (Mich. Ct. App. Dec.
6, 1995).
Petitioner then filed a delayed application for leave to
appeal to the Michigan Supreme Court, presenting the same
8 Hicks v. Straub No. 03-1124
4Petitioner had previously filed–on January 26, 1999–a writ of
habeas corpus under 28 U.S.C. § 2254. Conceding that his petition
contained unexhausted claims, petitioner explained that he had filed the
petition to avoid a perceived violation of the applicable statute of
limitations. Petitioner stated that he wanted to pursue state collateral
review so as to exhaust these claims as well as to raise claims based upon
a denial of his right to confrontation and upon a denial of his right to the
effective assistance of counsel. The district court dismissed the petition
without prejudice on Sep tember 2 9, 199 9, pursuant to the p arties’
stipulation that 28 U.S.C. § 2 244 (d)(1 )’s one-year statute of limitations
would be tolled during the pendency of state collateral review, and that
any re-filed § 2254 petition would not constitute a “successive
petition” under 28 U.S.C. § 2244(b)(2). Hicks v. Straub, No. 99-
70299 (E.D. Mich. September 29, 1999).
claims that he had presented to the Michigan Court of
Appeals. Petitioner also filed a motion to remand the case to
the trial court for an evidentiary hearing on his ineffective-
assistance-of-trial-counsel claim. On November 7, 1997, the
Michigan Supreme Court denied petitioner leave to appeal
and denied the motion for remand on the ground that it was
“not persuaded that [it should review] the questions
presented.” People v. Hicks, 456 Mich. 884 (Mich. 1997).
C. State Collateral Review
On January 29, 1999, petitioner filed a motion for relief
from judgment in the trial court, pursuant to M.C.R. 6.500.4
The record indicates that petitioner made the following two
claims, among others, in that motion:
I. [Petitioner was] denied his constitutional right to
confront witnesses against him when the prosecutor
advised the jury during opening statement that
defendant had confessed to the murder, where the
prosecutor without even the pretense of due
diligence failed thereafter to produce the witness to
the alleged confession, where defense counsel never
responded to the issue of the “confession” in any
way, and where the trial court’s instructions failed

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No. 03-1124 Hicks v. Straub 9
5During an earlier hearing, at which only the prosecutor appeared, the
prosecutor argued that the Michigan Court of Appeals had decided all of
the claims in petitioner’s motion for relief from judgment. The trial judge
then stated:
That’s what I tho ught. I read the Court of Appeals opinion
again, the ineffective assistance, the alleged prosecutorial
misco nduc t, the comments made in the opening statement that
were never followed up about the jail compatriot claiming the
[d]efendant made statements. In any event all of these have been
utterly to remedy the enormous prejudice to the
defendant.
II. [Petitioner was] deprived of the effective assistance
of counsel when trial counsel failed to object or
move for mistrial based upon an obvious deprivation
of the right to confront witnesses following the
prosecutor’s unsupported statement to the jury that
the defendant had confessed, and where appellate
counsel failed to frame the issue properly as the
deprivation of the right to confront witnesses in
violation of the Sixth Amendment.
In support of his claims, petitioner argued, for the first time,
that the trial court’s jury instruction on Brand was incapable
of curing the prosecutor’s statement to the jury that petitioner
had confessed to a jail inmate because that statement never
disclosed the name of that jail inmate while the court’s
instruction only referenced Brand by name, not by his role as
the jail inmate to whom petitioner allegedly confessed.
Petitioner further argued that, had Brand testified, defense
counsel would have had substantial evidence with which to
impeach his testimony.
In an order dated March 16, 2000, the state trial court
denied petitioner’s motion for relief from judgment. People
v. Hicks, No. 93-2188FC (Calhoun County Circuit Court
March 16, 2000). The court outlined its reasons for that
denial at a hearing on March 6, 2000.5 During that hearing,
10 Hicks v. Straub No. 03-1124
add ressed , so that motion is denied.
Petitioner’s counsel failed to attend this hearing due to a scheduling error.
The state co urt re-scheduled the hearing on p etitioner’s motion for
March 6 , 200 0, at which hearing bo th counsel were pre sent.
6Presumably in response to this contention, the prosecutor argued
that petitioner should not be permitted to prese nt an argument that is
simply worded differently.
petitioner argued that, although his Confrontation Clause and
Due Process Clause claims are grounded on the same factual
predicate, they are legally distinct. Therefore, he argued the
Michigan Court of Appeals decided only the latter, but not the
former claim.6 Petitioner further argued that the ineffective
assistance of appellate counsel had prevented him from
presenting his Confrontation Clause claim to the court of
appeals. He asserted that both trial counsel and appellate
counsel were ineffective for failing to identify and to raise the
Confrontation Clause claim at trial and on direct review,
respectively.
The trial court noted that the Michigan Court of Appeals
had held that trial counsel was not ineffective. Nevertheless,
it stated that, “[b]ecause this is a first degree murder
conviction and a felony firearm conviction, . . . [it was]
willing to address the underlying substance of the motion.”
The court stated that, because defendant testified that he had
an alibi defense and completely denied having anything to do
with the murder, the defense “clearly contradicted the
[p]rosecutor’s opening statement [that defendant had
confessed].” The trial court then noted that it had instructed
the jury that the lawyers’ arguments and statements are not
evidence and that the jury’s decision must be based upon only
evidence. The court concluded that, “technically,” there is no
“confrontation issue” because, absent the prosecutor’s
statement, “there was no evidence brought into play against
the defendant.” While reading onto the record the Michigan
Court of Appeals’ opinion denying petitioner’s ineffective-

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No. 03-1124 Hicks v. Straub 11
7W e note that the Michigan Court of Appeals’ decision, on direct
review, necessarily addressed only petitioner’s claim of ineffective
assistance of trial counsel. We further note that, while the trial court, in
denying petitioner’s post-conviction motion, did no t expre ssly articulate
its reasoning for the denial of petitioner’s claim that appellate counsel was
ineffective for failing to raise a Confrontation Clause challenge on direct
review, such a holding implicitly follows from its express finding that trial
counsel was not ineffective for failing to raise such a challenge at trial.
assistance-of-counsel claim, the trial court underscored the
following excerpt as the most important in its view:
[T]he record provides no support for [d]efense’s
proposition that counsel’s failure to object to the
admission of evidence, his failure to request a pretrial
lineup, his failure to extensively cross-examine an
eyewitness, or his presentation of the [d]efendant’s
defense fell below the objective standard of
reasonableness. We find that defendant has failed to
overcome the presumption that he was afforded effective
assistance of counsel.
Based upon this excerpt, the trial court concluded that
petitioner had not presented a “specific discrete allegation of
ineffective assistance.” Rather, according to the trial court,
petitioner’s allegation “was wide-ranging” and involved a
“number of different areas . . . to demonstrate ineffective
assistance.” As a result, the trial court also agreed with the
court of appeals that trial counsel’s assistance was not
ineffective, reasoning that defendant had posited an alibi
defense before the jury, and that the court had instructed the
jury that lawyers’ statements are not evidence. The court then
denied petitioner’s motion.7
Petitioner filed a delayed application for leave to appeal the
trial court’s denial of his motion for relief from judgment in
the Michigan Court of Appeals, presenting these claims:
12 Hicks v. Straub No. 03-1124
I. The trial court was clearly erroneous in rejecting
defendant[]’s claim that he was denied his
constitutional right to confront witnesses against him
when the prosecutor advised the jury during opening
statement that defendant had confessed to the
murder, where the prosecutor without even the
pretense of due diligence failed thereafter to produce
the witness to the alleged confession, where defense
counsel never responded to the issue of the
“confession” in any way, and where the trial court’s
instructions failed utterly to remedy the enormous
prejudice to the defendant.
II. The trial court was clearly erroneous in rejecting
defendant[]’s claim that he was deprived of the
effective assistance of counsel when trial counsel
failed to object or move for mistrial based upon an
obvious deprivation of the right to confront
witnesses following the prosecutor’s unsupported
statement to the jury that the defendant had
confessed, and where appellate counsel failed to
frame the issue properly as the deprivation of the
right to confront witnesses in violation of the Sixth
Amendment.
The Michigan Court of Appeals denied petitioner leave to
appeal on the ground that petitioner had failed “to meet the
burden of establishing entitlement to relief under M.C.R.
6.508.” People v. Hicks, No. 226074 (Mich. Ct. App.
Aug. 11, 2000).
Petitioner then filed a delayed application for leave to
appeal in the Michigan Supreme Court, presenting the same
claims that he had presented to the Michigan Court of
Appeals. The Michigan Supreme Court denied petitioner
leave to appeal, ruling that petitioner had failed “to meet the
burden of establishing entitlement to relief under M.C.R.
6.508(D).” People v. Hicks, 463 Mich. 978 (Mich. Feb. 26,
2001).

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No. 03-1124 Hicks v. Straub 13
8The district court determined that habeas corpus relief was not
warranted for his claims based on a witness’ in-court identification of
him.
D. Federal Collateral Review Before the District Court
On March 9, 2001, petitioner filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. Petitioner presented
the following claims as grounds for relief:
I. Petitioner was denied his constitutional right to
confront witnesses against him when the prosecutor
advised the jury during opening statement that
petitioner had confessed to the murder, where the
prosecutor without even the pretense of due
diligence failed thereafter to produce the witness to
the alleged confession, where defense counsel never
responded to the issue of the ‘confession’ in any
way, and where the court’s instruction failed utterly
to remedy the enormous prejudice to the petitioner.
II. Petitioner was deprived of the effective assistance of
counsel when trial counsel failed to object or move
for mistrial based upon an obvious deprivation of the
right to confront witnesses following the
prosecutor’s unsupported statement to the jury that
the petitioner had confessed, and where appellate
counsel failed to frame this issue properly as the
deprivation of the right to confront witnesses in
violation of the Sixth Amendment.
On October 15, 2002, the district court conducted an
evidentiary hearing in which it found trial counsel was
ineffective, and conditionally granted petitioner a writ of
habeas corpus on petitioner’s Confrontation Clause claim.8
14 Hicks v. Straub No. 03-1124
1. Procedural Default Consideration on State
Collateral Review
On state collateral review, the Michigan Supreme Court
denied petitioner leave to appeal the trial court’s denial of his
motion for relief from judgment on the ground that petitioner
failed “to meet the burden of establishing entitlement to relief
under M.C.R. 6.508(D).” People v. Hicks, 463 Mich. 978
(Mich. Feb. 26, 2001). In so holding, the state court did not
specify whether it was relying upon a particular subsection of
M.C.R. 6.508(D). Before the district court, petitioner and
respondent argued about whether the Michigan Supreme
Court’s denial rested upon an adequate and independent state
procedural law and, in particular, about whether it relied upon
subsection (3) of M.C.R. 6.508(D). M.C.R. 6.508(D)(3)
provides:
The court may not grant relief to the defendant if the
motion . . . alleges grounds for relief, other than
jurisdictional defects, which could have been raised on
appeal from the conviction and sentence or in a prior
motion under this subchapter [of post-appeal relief],
unless the defendant demonstrates (a) good cause for
failure to raise such grounds on appeal or in the prior
[post-appeal] motion, and (b) actual prejudice from the
alleged irregularities that support the claim for relief.
Respondent argued that, in denying petitioner relief under
M.C.R. § 6.508(D), the Michigan Supreme Court implicitly
relied upon subsection (3). Respondent argued that
subsection (3) applied because, although petitioner had
presented the factual predicate for his Confrontation Clause
claim to the Michigan courts on direct review by virtue of his
prosecutorial misconduct claim, he had not presented the legal
argument for that claim until state collateral review.
Petitioner concedes that he did not expressly present his
Confrontation Clause claim on direct review. However,
petitioner does argue that he “fairly presented” his
Confrontation Clause claim to the Michigan Court of Appeals

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No. 03-1124 Hicks v. Straub 15
9Petitioner asserted that because the Michigan courts had not decided
his Confrontation Clause claim on direct review, the Michigan Supreme
Court, on co llateral review, could not have relied upon M.C.R.
6.508(D)(2) in denying petitioner leave to appe al his mo tion for relief
from judgment. Th us, petitioner conceded – albeit implicitly – that the
Michigan Supreme Court denied him such leave pursuant to M.C.R.
6.508(D )(3).
on direct review based solely on his presentation of the
factual predicate. Accordingly, petitioner argues that there
was no basis for procedural default under M.C.R.
6.508(D)(3). Alternatively, petitioner argued that appellate
counsel’s failure to raise the Confrontation Clause claim on
direct review constituted ineffective assistance so as to excuse
such default. In support, petitioner claimed that appellate
counsel buried the Confrontation Clause issue, the “most
significant constitutional deprivation in th[e] case,” in a
“garden-variety prosecutorial misconduct claim,” and that, to
the extent that his Confrontation Clause claim is meritorious,
such ineffective assistance sufficiently prejudiced him.
Respondent countered that petitioner’s appellate counsel did
not render ineffective assistance by framing the underlying
factual predicate as a prosecutorial misconduct claim – the
“normal” and “accepted” legal theory – rather than as a
Confrontation Clause claim – an “unusual” and “creative”
legal theory. Petitioner also asserted that the Michigan
Supreme Court’s “arbitrary and ambiguous” form order
denying him leave to appeal his post-conviction motion for
relief from judgment did not constitute an adequate state
procedural ground.
The district court held that the Michigan Supreme Court, in
denying petitioner leave to appeal his motion for relief from
judgment under M.C.R. 6.508(D), relied upon subsection (2),
not (3).9 Hicks v. Straub, 239 F. Supp. 2d 697, 706-07 (E.D.
Mich. 2003). M.C.R. 6.508(D)(2) provides:
The court may not grant relief to the defendant if the
motion . . . alleges grounds for relief which were decided
16 Hicks v. Straub No. 03-1124
10Resp ondent’s brief states that “[t]he trial court, perceiving no
difference in the claim from what had been presented during [p]etitioner’s
appeal of right, denied the m otion on the ground that [p]etitioner co uld
not collaterally attack his conviction on grounds already presented in a
prior appeal.” Thus, both the district court and respo ndent seem to
contend that the trial court’s denial of petitioner’s motion for relief from
judgment rested on this ground . W hile the prosecutor made this argument
before the trial court in the initial ex parte hearing, and while portions of
the subsequent hearing, on March 6, 2000, reveal that the trial court
against the defendant in a prior appeal or proceeding
under this subchapter [of post-appeal relief], unless the
defendant establishes that a retroactive change in the law
has undermined the prior decision;
In so holding, the district court reasoned that, although
“[p]etitioner could have presented his Confrontation Clause
claim in a clearer manner,” he “fairly presented [it] to the
Michigan state courts on direct review.” Id. at 706. The
district court underscored that petitioner, in his brief to the
Michigan Court of Appeals, argued that the prosecutor
engaged in misconduct by relaying in his opening statement
petitioner’s alleged confession to the murder and then
subsequently failing, because of a lack of due diligence, to
produce that inmate as a witness at trial. Id. Relying upon
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000), the
district court concluded that the facts underlying the
“prosecutorial misconduct claim . . . [that petitioner
presented] in his state court briefs were ‘well within the
mainstream of constitutional law’ [on the Confrontation
Clause] such that the Michigan state courts should have
recognized and addressed the Confrontation Clause issue.”
Id. In further support, the district court posited that petitioner
had expressly presented his Confrontation Clause claim, as
such, on state collateral review, and that the Michigan trial
court, on such review, had agreed with the prosecutor that
petitioner’s motion for relief from judgment only presented
claims that he had previously presented to the state courts on
direct review.10 Id. According to the district court, because

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No. 03-1124 Hicks v. Straub 17
examined the Michigan Court of Appeals’ decision, the trial court,
at that subsequent hearing, expressly considered the merits of
petitioner’s claims. In its order denying petitioner’s motion for
relief from judgment, the trial court adopted its reasoning at the
subsequent hearing as the basis for that denial.
11In so holding, the district court relied upon Ceja v. Stewart, 97 F.3d
1246, 1253 (9th Cir. 1996), which held that a state court’s application of
the rule of res judiciata is not an adequate proce dural bar to foreclose
federal habeas relief.
petitioner fairly presented his Confrontation Clause claim to
the Michigan courts on direct review, the courts, not
petitioner, bear the blame for their failure to recognize and to
rule upon that claim. Id. The district court found that the
state courts’ failure to recognize and to address petitioner’s
fairly-presented Confrontation Clause claim in denying
petitioner relief on direct review constituted a constructive
denial of that claim for purposes of M.C.R. 6.508(D)(2). Id.
at 707. After finding that the Michigan Supreme Court
denied petitioner leave to appeal under M.C.R. 6.508(D)(2),
the court held that this state procedural law is inadequate to
bar federal habeas review because it is “simply a rule of res
judicata barring a defendant from re[-]litigating claims in a
motion for relief from judgment which were decided
adversely to him in a prior state court decision.”11 Id. Thus,
the district court found that petitioner had not procedurally
defaulted his Confrontation Clause claim on state collateral
review. Id.
2. Procedural Default Consideration on Direct Review
Before the district court, respondent argued that, to the
extent petitioner fairly presented his Confrontation Clause
claim to the state courts on direct review by virtue of
presenting the factual basis underlying his prosecutorial
misconduct claim, petitioner, nevertheless, procedurally
defaulted that claim. As respondent pointed out, the
Michigan Court of Appeals, on direct review, found that
18 Hicks v. Straub No. 03-1124
12On direct review, the M ichigan Court of Ap pea ls held that
petitioner had failed to p reserve his prosecutorial misconduct claim based
upon the prosecutor’s opening statement on the ground that petitioner had
failed to object to this statement at trial, and that, because the jury
instructions remedied any prejudice resulting from this statement, no
manifest injustice existed to excuse this failure. T hus, as respondent aptly
argued, to the exte nt that petitioner had raised his Confrontation C lause
claim on direct review by virtue of presenting the sam e facts underlying
his prosecutorial misconduct claim, the Michigan Court of Appeals’
procedural-default ruling would apply with equal force to that claim as
well.
petitioner had procedurally defaulted his prosecutorial
misconduct claim by failing to object at trial to its underlying
factual predicate – the prosecutor’s opening statement
relaying petitioner’s purported confession. Respondent
further argued that trial counsel’s failure to object to this
alleged Confrontation Clause violation did not constitute
ineffective assistance of counsel so as to excuse any such
default. Respondent asserted that petitioner’s trial counsel
chose not to object or move for a mistrial when the state
failed to produce Brand as a matter of trial strategy.
Specifically, respondent maintained that the failure of Brand
to appear was a fortunate turn of events because Brand’s
testimony would only have strengthened the prosecution’s
case. Moreover, according to respondent, had trial counsel
objected and received a mistrial, there would have been the
risk that the government, at the re-trial, would have been able
to produce Brand as a witness.
The district court held that, in case the Michigan Court of
Appeals, on direct review, found petitioner’s Confrontation
Clause claim procedurally defaulted due to his trial counsel’s
failure to object to that underlying violation at trial,12 that
failure constituted ineffective assistance and, thus, excused
any such procedural default. After conducting an evidentiary
hearing on the matter, the district court agreed with petitioner
that trial counsel’s assistance was objectively unreasonable
for the following reasons: 1) it should have been obvious to

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No. 03-1124 Hicks v. Straub 19
13According to petitioner, such impeachment evidence includes
Bra nd’s admissions that he anticipated that the prosecutor “m ight” help
him out with charges that he was facing at the time, that the alleged
confession occurred within feet of a large sign warning that everything
was being recorded , and the implausible nature of petitioner having
confessed to a complete stranger at the very beginning of their
conversation.
him that the prosecutor’s failure to produce Brand at trial
violated petitioner’s right to confrontation; 2) he had no
strategic reason not to object to this Confrontation Clause
violation; 3) his purported reason for failing to object–that he
did not want the prosecution to produce Brand as a witness at
any re-trial–was “unreasonable” and “wholly unsupported by
the record” due to the availability of substantial impeachment
material against Brand;13 and 4) he did not even obtain an
adequate curative instruction because the instruction that the
trial court gave did not reference Brand as the jail inmate to
whom petitioner allegedly confessed. Id. at 712-13. The
district court found that, because the prosecutor’s unsupported
opening statement violated petitioner’s right to confront the
witnesses against him, trial counsel’s deficient representation
sufficiently prejudiced petitioner. Id. Pursuant to 28 U.S.C.
§ 2254(d), the district court further found that the prior-state
court adjudication denying petitioner’s ineffective-assistance-
of-trial-counsel claim on the merits constituted an
unreasonable application of Strickland v. Washington, 466
U.S. 668 (1984), the pertinent, clearly-established Supreme
Court precedent. Id. Thus, the district court found the
procedural default doctrine did not bar its review of
petitioner’s Confrontation Clause claim on the merits. Id.
3. Adjudication on the Merits
Relying upon Harris v. Stoval, 212 F.3d 940 (6th Cir.
2000), the district court held that, where, as here, the
petitioner fairly presented his federal constitutional claim of
a violation of the confrontation clause to the state courts on
direct review, and those courts, in denying that claim, failed
20 Hicks v. Straub No. 03-1124
to address it, a federal court must conduct an independent
review of that state court’s decision under 28 U.S.C.
§ 2254(d). Id. at 707. The court reasoned that such a denial
constituted an adjudication on the merits – albeit without any
reasoning – for purposes of triggering § 2254(d). Id.
In reviewing petitioner’s Confrontation Clause Claim, the
district court found that the prosecutor’s opening statement
relaying petitioner’s purported confession violated
petitioner’s right to confrontation, and that this violation was
not harmless error. Id. at 711. The district court further
found, pursuant to § 2254(d), that the prior state-court denial
of petitioner’s Confrontation Clause claim on the merits was
an unreasonable application of the pertinent, clearly-
established Supreme Court precedent. Id. at 712; see
generally Pointer v. Texas, 380 U.S. 400, 403 (1965), Bruton
v. United States, 391 U.S. 123 (1968), and Frazier v. Cupp,
394 U.S. 731 (1969). Consequently, the district court
conditionally granted petitioner’s application for a writ of
habeas corpus under 28 U.S.C. § 2254 on his Confrontation
Clause claim. Id. at 714.
II. Analysis
The provisions of the Antiterrorism and Effective Death
Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214
(“ADEPA”), apply to petitioner’s habeas petition, which
petitioner filed after the effective date of the act. “In a habeas
corpus proceeding, we review de novo a district court’s legal
conclusions and its factual findings for clear error.” Lott v.
Coyle, 261 F.3d 594, 606 (6th Cir. 2001). We review de novo
a district court’s determinations regarding a habeas
petitioner’s procedural default of any of his claims. Id. We
review de novo a district court’s determinations concerning a
habeas petitioner’s ineffective-assistance-of-counsel claim, a
mixed question of law and fact. Id.

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No. 03-1124 Hicks v. Straub 21
A. Procedural Default
Subject to two exceptions, 28 U.S.C. § 2254(b)(1)(A)
prohibits a federal court from granting “[a]n application for a
writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a [s]tate court ... unless . . . the
applicant has exhausted the remedies available in the courts
of the [s]tate.” 28 U.S.C. § 2254(c) provides that an applicant
has exhausted the remedies available in state courts only if he
no longer has the right to raise the question presented by any
available procedure under state law. The procedural default
doctrine applies to bar a federal court’s review of a state
prisoner’s federal claim where that prisoner failed to give the
state courts a “full and fair” opportunity to resolve that
claim–as the exhaustion doctrine requires–and the prisoner
cannot cure that failure because state-court remedies are no
longer available. See O’Sullivan v. Boerckel, 526 U.S. 838,
848 (1999) (holding that the procedural default doctrine
preserves the integrity of the exhaustion doctrine, which “a
prisoner could evade . . . by ‘letting the time run’ on state
remedies”); Coleman v. Thompson, 501 U.S. 722, 732 (1991)
(holding that a “habeas petitioner who has defaulted his
federal claims in state court meets the technical requirements
for exhaustion . . . [because] there are no state remedies any
longer ‘available’ to him,” and, thus, that the procedural
default doctrine prevents a habeas petitioner from
circumventing the policy underlying the exhaustion doctrine).
In deciding whether a petitioner procedurally defaulted a
federal claim in state court, we must determine whether:
1) the petitioner failed to comply with an applicable state
procedural rule; 2) the last state court rendering judgment on
the claim at issue, in fact, enforced the applicable state
procedural rule so as to bar that claim; and 3) the state
procedural default is an adequate and independent state
ground properly foreclosing federal habeas review of the
petitioner’s federal claim at issue. Seymour v. Walker, 224
F.3d 542, 554-55 (citing Maupin v. Smith, 785 F.2d 135, 138
(6th Cir. 1986)); Simpson v. Jones, 238 F.3d 399, 406 (6th
22 Hicks v. Straub No. 03-1124
14The district court and petitioner make much of the fact that
respo ndent, in an ex parte hearing before the Michigan trial court on
petitioner’s motion for relief from judgment, argued that petitioner had
presented his Confrontation Clause claim to the state courts on direct
review, and that the state courts had decided that issue. In his brief here,
petitioner contends that the doctrine of judicial estopp el should op erate to
bar respondent from now asserting that petitioner had not fairly presented
his Co nfrontation Clause claim to the state co urts on direct review.
However, as discussed below, the supreme court denied petitioner
leave to appeal under M.C.R. 6.508(D)(3) on the ground that petitioner
had improperly failed to raise his Confrontation Clause claim on direct
review. Alternatively, to the extent that p etitioner suggests that
respo ndent’s prior inconsistent po sition was “successful” because the state
trial court had relied upon it in denying petitioner’s motion, the actual
order denying that motion does not support such a claim. Attached to that
order is not the transcript from the ex parte hearing, but the transcript
from the subsequent hearing, in which the trial court expressly stated that
it would address the claim’s merits. Moreo ver, petitioner’s brief concedes
that the trial court did not find a procedural default, but rather addressed
the merits of his Confrontation Clause claim.
In any even t, we note that, in his habeas petition–and on state
Cir. 2000). If, pursuant to these standards, a petitioner
procedurally defaulted his federal claim in state court, the
petitioner must demonstrate either: 1) cause for his failure to
comply with the state procedural rule and actual prejudice
flowing from the violation of federal law alleged in his claim,
or 2) that a lack of federal habeas review of the claim’s merits
“will result in a fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750; see Murray v. Carrier, 477 U.S.
478, 496 (1986) (specifying that a ‘fundamental miscarriage
of justice’ will result “where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent”).
1. Direct Review
We find that, contrary to the district court’s conclusion,
petitioner procedurally defaulted his Confrontation Clause
claim by failing to fairly present it to the Michigan courts on
direct review.14 A petitioner must fairly present to the state

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No. 03-1124 Hicks v. Straub 23
collateral review–petitioner conceded that he had not raised his
Confrontation Clause claim on direct review–that it was “distinct from the
general prosecutorial misconduc t claim that” petitioner brought on direct
review. In fact, petitioner made this contention so as to persuade the trial
court that the state courts had not previously decid ed this claim and to
prompt the trial court to address its merits. Moreover, petitioner also
conceded to the district court, regarding his prior § 2254 p etition, that the
Confrontation Clause claim that it presented had not been exhausted on
direct review. Indeed, this representation prompted the parties to enter
into a stipulation to dismiss that petition so that petitioner could exhaust
that claim. T hus, petitioner’s co ntention that the eq uities compe l us to
app ly the doctrine of judicial estopp el against respo ndent is not well-
taken.
courts either the substance of or the substantial equivalent of
the federal claim that he is presenting to a federal habeas
court. A petitioner fairly presents a federal habeas claim to
the state courts only if he “asserted both the factual and legal
basis for his claim.” McMeans, 228 F.3d at 681. See also
Picard v. Connor, 404 U.S. 270, 276, 277-78 (1971) (holding
that petitioner’s challenge to the legality of the indictment
was neither the “substantial equivalent” of nor entailed the
same “ultimate question for disposition” as his equal
protection claim even though it relied upon the same factual
basis, and, thus, that the state courts had no sua sponte duty
to consider whether that factual basis resulted in a equal
protection violation). As this Court has previously explained,
the exhaustion doctrine requires the petitioner to present “the
same claim under the same theory” to the state courts before
raising it on federal habeas review. Pillette v. Foltz, 824 F.2d
494, 497 (6th Cir. 1987). In determining whether a petitioner
“fairly presented” a federal constitutional claim to the state
courts, we consider whether: 1) the petitioner phrased the
federal claim in terms of the pertinent constitutional law or in
terms sufficiently particular to allege a denial of the specific
constitutional right in question; 2) the petitioner relied upon
federal cases employing the constitutional analysis in
question; 3) the petitioner relied upon state cases employing
the federal constitutional analysis in question; or 4) the
petitioner alleged “facts well within the mainstream of [the
24 Hicks v. Straub No. 03-1124
pertinent] constitutional law.” McMeans, 228 F.3d at 681
(holding that “[g]eneral allegations of the denial of rights to
a ‘fair trial’ and ‘due process’ do not ‘fairly present’ claims
that specific constitutional rights were violated.”) However,
a petitioner need not cite “book and verse on the federal
constitution.” Picard, 404 U.S. at 278 (quotation marks and
citations omitted).
Because his prosecutorial misconduct and Confrontation
Clause claims rest upon the same factual predicate, petitioner,
by presenting his prosecutorial misconduct claim on direct
review, also presented the factual basis underlying his
Confrontation Clause claim. Thus, the issue is whether
petitioner, on direct review, presented either the substance of
or the substantial equivalent of the legal basis for his
Confrontation Clause claim. We find that he did not.
Petitioner referenced the underlying factual predicate
neither in terms relating to legal precedent on the
Confrontation Clause nor in terms of a specific violation of
his right to confrontation. See Newton v. Million, 349 F.3d
873, 877 (6th Cir. 2003) (holding that petitioner fairly
presented his federal claim to the state courts where he
phrased his claim in terms of the specific denial of a
constitutional right–his right to due process of law under the
Fifth and Fourteenth Amendments–and alleged the underlying
facts upon which that claim was based even though he cited
no cases employing federal constitutional analysis). Notably,
petitioner never mentioned the terms confrontation or cross-
examination. Rather, petitioner argued only that the
prosecutor’s opening statement amounted to the “argu[ing]
facts not in evidence,” and that this instance of prosecutorial
misconduct violated his constitutional right to a fair trial.
In addressing the underlying factual foundation in his state
court briefs, petitioner did not rely upon any federal legal
precedent analyzing a claim under the Confrontation Clause,
and only one case upon which he relied discussed the

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No. 03-1124 Hicks v. Straub 25
15Petitioner cited Peo ple v. Dye, 427 N.W .2d 5 01 (Mich. 19 88), in
arguing that the prosec utor’s “belated attempt to produce . . . Brand was
hardly a sign of good faith” and, thus, that the prosecutor was “unable to
show due diligence in order to use . . . [Brand’s preliminary] examination
testimony.” In Dye, the Michigan Supreme C ourt addressed the substance
of and purpose behind the Confrontation Clause; the court held, however,
that a “transcript of prior testimony may[,] nevertheless[,] b e offered in
evidence upon a showing that the witness is unavailable and that the
testimony bears satisfactory indicia of reliability.” 427 N.W.2d at 504-05
(relying upon M .C.L. § 768.26, which permits the prosecution to use a
prior witness’ testimony from a preliminary examination, a deposition, or
a former trial where the prosecution cannot produce that witness at trial).
As part of his duty to establish the witness’ unavailability, the M ichigan
Supreme Court held that the prosecutor, at the defendant’s re-trial, had not
used due diligence in attempting to produce three witnesses who had
testified against the defendant at his first trial and, thus, that transcripts of
those witnesses’ statements in the first trial were inadm issible. Id. at 506-
511 .
Confrontation Clause.15 Petitioner’s single reference to one
case discussing the Confrontation Clause–where that case,
unlike here, involved the admission into evidence of
transcripts of the former witnesses’ incriminating
testimony–is insufficient to fairly present a Confrontation
Clause claim based upon the prosecutor’s opening statement,
which is not evidence. See McMeans, 228 F.3d at 682
(holding that, even though isolated state cases upon which
petitioner relied contained “a few brief references to the
Confrontation Clause,” petitioner had not “fairly presented”
his Confrontation Clause claim to the state courts on direct
review because, during that review process, petitioner focused
entirely on the state’s rape shield law, failed to cite any
federal precedent, and simply argued that the trial judge’s
restriction of his cross-examination denied him a “fair trial”
and “due process”).
While the district court found that the factual predicate that
petitioner presented on direct review fell “well within the
mainstream of” Confrontation Clause precedent, we disagree.
Frazier v. Cupp, 394 U.S. 731 (1969), best illustrates why we
arrive at this conclusion. In Frazier, the Supreme Court
26 Hicks v. Straub No. 03-1124
considered a habeas petitioner’s claim that the prosecutor’s
conduct violated his right to confrontation. Id. at 734. In that
case, the prosecutor, during his opening statement,
summarized the anticipated testimony of Rawls, a witness
who had pleaded guilty to the same offense for which the
petitioner was being tried. Id. at 733. The summary “took
only a few minutes to recite and was sandwiched between a
summary of [the] petitioner’s own confession and a
description of the circumstantial evidence [that] the [s]tate
would introduce.” Id. Thus, the prosecutor did not
emphasize that summary in any particular way. Id.
Although, “[a]t one point[,] the prosecutor referred to a paper
that he was holding in his hands to refresh his memory about
something Rawls had said, . . . he did not explicitly tell the
jury that this paper was Rawls’ confession, nor did he purport
to read directly from it.” Id. at 734. Yet, the state conceded
that “the jury might fairly have believed that the prosecutor
was referring to Rawls’ statement.” Id. Later, the prosecutor
called Rawls to the stand. Id. However, the trial court soon
dismissed Rawls from the stand after Rawls informed the
court that he would invoke his privilege against self-
incrimination as to every question concerning the events at
issue. Id.
Relying upon Bruton v. United States, 391 U.S. 123 (1968),
and Douglas v. Alabama, 380 U.S. 415 (1965), in which the
Supreme Court found Confrontation Clause violations, the
petitioner in Frazier argued before the Supreme Court that
“this series of events placed the substance of Rawls’
statement before the jury in a way that ‘may well have been
the equivalent in the jury’s mind of testimony,’ and the
statement ‘added substantial, perhaps even critical, weight to
the [g]overnment’s case in a form not subject to cross-
examination.’” Id. (internal citations omitted). However, the
Supreme Court distinguished petitioner’s case from Bruton as
follows: “[U]nlike the situation in Bruton, the jury was not
being asked to perform the mental gymnastics of considering
an incriminating statement against only one of two defendants
in a joint trial.” Id. Here, unlike Bruton, but like Frazier, the

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No. 03-1124 Hicks v. Straub 27
jury was not required, via the admission into evidence of a co-
defendant’s confession inculpating petitioner, to consider that
incrimination against only that co-defendant.
The Frazier Court also distinguished Douglas as follows:
In Douglas, the prosecutor called the defendant’s
coconspirator to the stand and read his alleged confession
to him; the coconspirator was required to assert his
privilege against self-incrimination repeatedly as the
prosecutor asked him to confirm or deny each statement.
The Court found that this procedure placed powerfully
incriminating evidence before the jury in a manner which
effectively denied the right of cross-examination. Here,
Rawls was on the stand for a very short time and only a
paraphrase of the statement was placed before the jury.
This was done not during the trial, while the person
making the statement was on the stand, but in an opening
statement. In addition, the jury was told that the opening
statement should not be considered as evidence.
Certainly the impact of the procedure used here was
much less damaging than was the case in Douglas.
Id. at 735 (italics added). Here, unlike in both Douglas and
Frazier, the relevant witness, Brand, was not a co-conspirator
who had inculpated petitioner while confessing to the crime.
In addition, unlike in both Douglas and Frazier, the
prosecutor did not call Brand to the stand, and, thus, did not,
by his questions, read either Brand’s entire preliminary
examination testimony nor portions of it into the record.
Clearly then, unlike in Douglas, Brand did not give credence
to those questions by consistently asserting his Fifth
Amendment privilege.
The Frazier Court concluded that the limiting instruction
that the jury was not to regard counsels’ statements as
evidence was sufficient to protect the petitioner’s
constitutional rights. Id. 734-36 (noting that, while “[a] more
specific limiting instruction might have been desirable, . . .
28 Hicks v. Straub No. 03-1124
none was requested.”) The Court reasoned that it is not
remarkable “to assume that the jury will ordinarily be able to
limit its consideration to the evidence introduced during
trial.” Id. at 736. The Court also emphasized, however, that,
“[a]t least where the anticipated, and unproduced, evidence is
not touted to the jury as a crucial part of the prosecution’s
case, ‘it is hard . . . to imagine that the . . . minds of the jurors
would be so influenced by such incidental statements during
this long trial that they would not appraise the evidence
objectively and dispassionately.’” Id. (citations omitted). The
court held that nothing that occurred during the prosecution’s
opening statement would warrant relief under the
Confrontation Clause. Id. at 736-37 (also finding that the
prosecutor’s good faith in expecting the witness to testify,
while not controlling as to a deprivation of the petitioner’s
right of confrontation, precludes any finding of prosecutorial
misconduct).
Here, as in Frazier, the prosecutor neither emphasized his
reference to petitioner’s alleged confession in any way nor
“touted” that confession as a crucial part of its case to the
jury. The opening statement’s reference to petitioner’s
purported confession lasted less than a minute. The reference
was “sandwiched” between summaries of the evidence that
the government intended to produce, such as witnesses’
testimony identifying petitioner and showing that he knew the
victim. Moreover, unlike in Frazier, the prosecutor did not
appear to summarize Brand’s preliminary examination
testimony in his statement, but, rather, referred to the
purported confession generally. While the Supreme Court
cautioned in Frazier that “[i]t may be that some remarks
included in an opening or closing statement could be so
prejudicial that a finding of error, or even constitutional error,
would be unavoidable,” id. at 736, a comparison of the facts
in this case to those in Frazier reveal that this is not such a
case. The facts of petitioner’s case here are even less
damaging than those in Frazier where the Supreme Court
found no Confrontation Clause violation. Thus, as Frazier
illustrates, the principle that petitioner claims his factual

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No. 03-1124 Hicks v. Straub 29
predicate invokes – “that a jury may not be told of a
defendant’s confession [during the prosecutor’s opening
statement] unless the witness to that alleged confession is
subject to cross-examination”– does not fall “well within the
mainstream of” Confrontation Clause precedent.
Petitioner contends that his prosecutorial misconduct claim
necessarily encompassed the “more serious” Confrontation
Clause violation. However, petitioner’s prosecutorial
misconduct and Confrontation Clause claim involve distinct
legal analyses. See Frazier, 394 U.S. at 736-737 (holding that
a prosecutor’s good or bad faith in expecting a witness to
testify is not controlling in determining whether a defendant’s
right of confrontation, was violated, but finding that, because
of the prosecutor’s good faith there, no prosecutorial
misconduct claim could lie). Were we to hold that petitioner
fairly presented his Confrontation Clause claim to the state
courts on direct review, state courts would be compelled to
consider sua sponte all possible federal legal claims that a
petitioner’s factual allegations might arguably support. The
principle of comity underlying the exhaustion doctrine does
not permit us to force state courts to do so.
Because petitioner did not fairly present his Confrontation
Clause claim to the Michigan courts on direct review, the
state courts, on such review, could not have actually enforced
any applicable state procedural rule against that claim. See
Seymour, 224 F.3d at 554-55. We now turn to whether the
state courts enforced such a rule against his Confrontation
Clause claim on state collateral review.
2. State Collateral Review
In a motion for relief from judgment under M.C.R. 6.500,
petitioner submitted to the state trial court on collateral
review his Confrontation Clause claim along with his claims
of ineffective assistance of trial and appellate counsel
surrounding their failure to identify and to raise the
Confrontation Clause issue, as such, at trial and on direct
30 Hicks v. Straub No. 03-1124
16Because the state trial court, on collateral review, denied
petitioner’s Confrontation Clause claim on the merits, petitio ner also
failed to comply with M.C.R. 6.508(D )(2). Yet, by finding that petitioner
procedurally defaulted his Confrontation Clause claim under M.C.R.
6.508(D )(3), we need not and do not decide whether petitioner also did so
unde r subsection (2 ).
review, respectively. As discussed above, the state trial court
denied petitioner’s motion for relief from judgment. People
v. Hicks, No. 93-2188FC (Calhoun County Circuit Court
March 16, 2000). Both the Michigan Court of Appeals and
the Michigan Supreme Court denied petitioner leave to appeal
the trial court’s denial of his motion for relief from judgment
on the ground that petitioner failed “to meet the burden of
establishing entitlement to relief under M.C.R. 6.508(D).”
People v. Hicks, 463 Mich. 978 (Mich. Feb. 26, 2001).
The district court held that petitioner failed to comply with
only M.C.R. 6.508(D)(2) based upon its previous finding that
petitioner had fairly presented his Confrontation Clause claim
to the state courts on direct review and, thus, that the state
courts had decided that claim against petitioner. Since we
have concluded, as discussed above, that petitioner did not
fairly present his Confrontation Clause claim to the state
courts on direct review, we conclude that petitioner failed to
comply with M.C.R. 6.508(D)(3) when he did not raise his
Confrontation Clause claim on direct review.16
In denying petitioner leave to appeal his motion for relief
from judgment under M.C.R. 6.508(D), the Michigan
Supreme Court, the last state court rendering judgment on
petitioner’s Confrontation Clause claim, actually enforced
M.C.R. 6.508(D)(3) against petitioner so as to bar its review
of that claim. As Simpson v. Jones, 238 F.3d 399, 407-08
(6th Cir. 2000), makes clear, the Michigan Supreme Court’s
general invocation of M.C.R. 6.508(D) in denying such leave
constitutes an adequate, implicit invocation of the specific
procedural bar of whichever subsection of M.C.R. 6.508(D)
applies. See Burroughs v. Makowski, 282 F.3d 410, 413-14

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No. 03-1124 Hicks v. Straub 31
(6th Cir. 2002) (applying Simpson). Because M.C.R.
6.508(D)(3) was both firmly established and regularly
followed at the time of petitioner’s right to direct appeal, it
constitutes an adequate and independent state procedural
ground properly foreclosing federal habeas review of his
Confrontation Clause claim. See Friedman v. Smith, No. 02-
1255, 2003 WL 22976586, at * 7 (6th Cir. Dec. 5, 2003)
(finding that M.C.R. 6.508(D)(3), which the Michigan
legislature promulgated in 1989, has been regularly followed
since 1990). We find, therefore, that petitioner procedurally
defaulted his Confrontation Clause claim on state collateral
review.
Even though petitioner procedurally defaulted his
Confrontation Clause claim in state court, he may,
nevertheless, obtain federal habeas review of the claim if he
demonstrates either: 1) cause for his failure to comply with
the state procedural rule and actual prejudice flowing from the
violation of federal law alleged in his claim, or 2) that a lack
of federal habeas review of the claim’s merits “will result in
a fundamental miscarriage of justice.” Coleman, 501 U.S. at
750. Petitioner, pursuing the former route only, contends that
his appellate counsel’s failure to raise his Confrontation
Clause claim on direct review constituted ineffective
assistance of counsel in violation of the Sixth Amendment
and, thus, serves as the requisite cause to excuse his
procedural default under M.C.R. 6.508(D)(3). As to the
prejudice component, petitioner contends that the
Confrontation Clause violation alleged in his claim was
meritorious and would have constituted reversible error.
Attorney error that rises to the level of ineffective
assistance of counsel in violation of the Sixth Amendment
may constitute cause for a procedural default. Murray, 477
U.S. at 488-89. To establish that counsel’s assistance was
ineffective, the petitioner must demonstrate that: 1) counsel’s
performance was deficient in that it “fell below an objective
standard of reasonableness”; and 2) this deficient
performance actually prejudiced him in that there is a
32 Hicks v. Straub No. 03-1124
17Petitioner did not procedurally default his claim of ineffective
assistance of appellate counsel. State collateral review was the first
opp ortunity that petitioner had to raise this claim. In denying petitioner’s
motio n for relief from judgm ent, the state trial court decided petitioner’s
ineffective-assistance-of-appellate-counsel claim against p etitioner–albeit
without any reasoning. Thus, when the Michigan Supreme Court denied
petitioner leave to appeal this denial under M.C.R. 6.508(D), it was
implicitly invoking only subsection (2) with respe ct to pe titioner’s
ineffective-assistance-of-appellate-counsel claim.
However, as the district court correctly found, M.C.R. 6.508(D)(2)
does not co nstitute a state procedural gro und that is adequate to bar
federal habe as review. 28 U.S.C. § 2254(b)(1) prohibits a federal court
from granting habea s relief to a state prisoner on a federal claim unless
that prisoner has exhausted all availab le remedies in state cour t with
respect to that claim. Thus, a fed eral co urt may not justly find that a
prisoner procedurally defaulted his federal claim simply b y virtue of
receiving an adverse judgment on that claim while attempting to exhaust
it in state court. Such a doctrinal Catch-22 would effectively foreclose
federal habe as relief. Ind eed, state priso ners cannot p ursue p ost-
conviction relief in federal court for fed eral claims for which the state
court alread y granted such relief. In addition, as § 2254(d) illustrates,
AEDPA contemplates federal habeas review following an adverse state-
court adjudication on the merits of a state prisoner’s federal claim.
reasonable probability that, but for counsel’s deficient
performance, the proceeding’s result would have been
different. Strickland, 466 U.S. at 687-88, 694.
Here, petitioner has failed to establish that his appellate
counsel’s failure to raise a Confrontation Clause claim on
direct review constituted ineffective assistance under
Strickland so as to serve as cause to excuse his procedural
default of that claim. Even assuming arguendo that appellate
counsel’s failure to raise a Confrontation Clause claim on
direct review was objectively unreasonable so as to constitute
deficient performance,17 petitioner has failed to demonstrate
that this failure actually prejudiced him. Appellate counsel’s
failure to raise the Confrontation Clause claim on direct
review could only have prejudiced petitioner if there were a
reasonable probability that counsel’s pursuit of that claim
would have resulted in a successful appeal. McFarland v.

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No. 03-1124 Hicks v. Straub 33
18W e examine the merits of petitioner’s Co nfrontation Clause claim
only to determine if appellate counsel was unconstitutionally ineffective
for failing to raise it on direct review. See McFarland, 356 F.3d at 701
n.3.
Yukins, 356 F.3d 688, 699 (6th Cir. 2004); see Williams v.
Taylor, 529 U.S. 362, 392-93 (2000) (holding that, where
counsel’s ineffective assistance did not deprive the petitioner
“of any substantive or procedural right to which the law
entitled him,” the petitioner cannot satisfy Strickland’s
“prejudice” component).
Petitioner contends that there is a reasonable probability
that, but for appellate counsel’s failure to raise a
Confrontation Clause claim on direct review, that claim
would have prevailed and resulted in a reversal of his
conviction. In support, he relies upon Frazier v. Cupp, 394
U.S. 731 (1969), Bruton v. United States, 391 U.S. 123
(1968), Douglas v. Alabama, 380 U.S. 415 (1965), and
Pointer v. Texas, 380 U.S. 400, 407-08 (1965) (holding that
the admission into evidence at the petitioner’s trial of a
witness’ preliminary examination testimony inculpating the
petitioner violated his right of confrontation where that
witness did not testify at trial and where the petitioner did not
have a “complete and adequate opportunity to cross-examine”
that witness through counsel at the preliminary
examination).18 However, as discussed above, this case
materially differs from Bruton, Douglas, and Pointer.
Petitioner’s reliance on Frazier is misplaced because the
prosecutorial conduct in the present case is even less
objectionable than in Frazier. Thus, petitioner has failed to
demonstrate that there is a reasonable probability that, but for
appellate counsel’s failure to raise a Confrontation Clause
claim on direct review, that claim would have prevailed and
resulted in a reversal of his conviction. Consequently,
appellate counsel’s failure to raise a Confrontation Clause
34 Hicks v. Straub No. 03-1124
19Petitioner has also failed to show the req uisite prejudice to excuse
his procedural de fault of his Confrontation C lause claim. Because he has
not established a C onfrontation C lause vio lation in the first instance,
petitioner, thus, cannot establish that he suffered actual prejudice flowing
from such a violation.
claim on direct review cannot serve as cause for petitioner’s
procedural default of that claim.19
For the preceding reasons, we REVERSE the district
court’s grant of a writ of habeas corpus to petitioner and
remand to the district court with instruction to dismiss the
petition for the writ.

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No. 03-1124 Hicks v. Straub 35
_________________
CONCURRENCE
_________________
ROGERS, J., concurring. I concur in the result and in
much of the majority’s opinion. It is not sufficiently clear to
me, however, that on collateral review the Michigan Supreme
Court relied upon MCR 6.508(D)(3), where such an inference
relies entirely upon our after-the-fact determination that
(D)(3) rather than (D)(2) was the appropriate provision to rely
upon. In Burroughs, in contrast, it was “undisputed that
Burroughs failed to properly present his arguments for state
appellate review.” 282 F.3d. at 413. However, for the
reasons given in the majority’s discussion of Douglas,
Burton, and Frazier, petitioner has not adequately shown a
violation of the Confrontation Clause under applicable
Supreme Court precedents.

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